Fryingpan-Arkansas Project at 45

conduit to serve 16 communities and 25 water associations east of Pueblo were not implemented at that time due to the lack of federal funding. Evaluations on the quantity of water needed to satisfy long-range objectives for water users in the Southeastern district area were prepared in 1998. Additionally, an update of the estimated construction costs presented in the 1972 report was prepared in 1998.

The citizens and communities of the Lower Arkansas River Basin have waited 30 to 50 years for this project that will improve their water quality and supply. The need for the AVC has been well established for more than 50 years. The Lower Arkansas River Basin communities continue to seek federal assistance in moving this much-needed project forward.

IV. Conclusion

Community leaders from throughout the basin worked together in the 1950s and 1960s to create the vision for the Fry-Ark Project. Their vision has certainly paid off, but it wouldn't have been accomplished without a lot of cooperation and compromise. The challenge for Southeastern Colorado and the rest of the state is to come together again to plan for the future water resources needs by managing, developing, and protecting water and related resources in an environmentally and economically sound manner.

Response to questions submitted for the record by Bill Long, President, Southeastern Colorado Water Conservancy District Response to Representative Mark Udall's request for a description of the ways that the Fry-Ark diversions from the West Slope are limited.

The Fryingpan-Arkansas Project collects water from the headwaters of the Fryingpan River and Hunter Creek on the west slope of the Continental Divide and diverts this water to Arkansas River on the East Slope via the Boustead Tunnel. This collection and diversion process is accomplished via a network of in-stream diversion structures and underground tunnels.

The amount of water that the project is allowed to divert is limited by several factors. The Operating Principles were adopted by the State of Colorado, April 30, 1959 with subsequent amendments, and are incorporated in the authorizing legislation for the Project. These Operating Principles provide for a ceiling of 2,352,800 acre-feet in any period of 34 consecutive years, with an annual ceiling of 120,000 acre-feet. The 34 year rolling average works out to 69,200 acre-feet per year on average. The design capacity of the diversion system is further limited by the capacity of Boustead Tunnel, which normally cannot divert more than 945 cubic feet per second (c.f.s.).

Additionally, the Project is only allowed to divert water from the Fryingpan River and its tributaries when the Fryingpan River at the Thomasville gauge (a few miles above Ruedi Reservoir) is flowing at or above the rates shown in the following table:

Additionally, each diversion into the collection system is limited by decree, and there are minimum flows that must bypass the diversion control structures on most streams within the collection system. These minimum flows are shown in the following tables:

South Cunningham, Lily Pad and Granite Creeks have no minimum bypass as long as the minimum flow requirement on the Fryingpan River is met at the Thomasville gauge on the Fryingpan River.

There is also a limitation on the diversions from the Collection System in the Hunter Creek drainage area. These diversion control structures are not allowed to operate when the flows on the Hunter Creek above the Red Mountain Ditch fall below 51 c.f.s.

Finally, the first 3,000 acre-feet diverted from No Name and Midway diversions are used for the Twin Lakes exchange, which provides_for_the_Twin Lakes transmountain diversion system to bypass flows on the Roaring Fork River and its tributaries above Aspen.

Post Hearing Questions from Rep. John Salazar:

Chairman Long, thank you for your leadership at the SouthEast and for pushing for the Arkansas Valley Conduit. The Conduit was an original piece of the Fryingpan-Arkansas Project. Do you get frustrated that the Fryingpan-Arkansas Project is being utilized to move water, through_exchanges and storage, out of the Lower Ark and to Aurora decades before it'll serve one of its stated goals—to provide fresh drinking water to the Lower Ark?

Answer:

The Fry-Ark Project was designed to provide supplemental water to a valley that is water short. Thus, when municipalities from the South Platte basin have attempted to export some of the Arkansas' limited supply of native water, it has created challenges for water users in the Arkansas Valley as well as the District. Nothing in the Fry-Ark authorizing act, including any documents incorporated by reference in the statute, provides authority for the Secretary to enter contracts for use of Fry-Ark excess capacity space to store native Arkansas River water rights for use out of the Arkansas River Basin in Colorado, with the possible exception of the City of Aurora. It is not in the overall best interests of the District and its constituents for the Project to be used in unauthorized ways that could potentially hurt to the Project's intended beneficiaries.

Special protection for the Arkansas Basin beneficiaries of the Fry-Ark Project is built into the repayment contract, Contract No. 5-07-70-W0086, as amended, between_Southeastern and the United States, which govern the evacuation of water from Pueblo Reservoir. The spill order became part of the Contract by the Fourth Amendment in 1984 and resulted from negotiations between Southeastern, BWWP and Colorado Springs in connection with the 1984 applications filed in Water Court for the WWSP and Colorado Springs' and BWWP's exchanges. The spill priorities in Article 13, which are unique among Reclamation projects, provide:

(a) Whenever water is evacuated from Pueblo, Twin Lakes, and Turquoise Reservoirs to meet the necessities of Project flood control, power generation purposes, storage of transmountain Project water, storage of native Project water, and Project operational requirements; except as provided in

Subarticle 13.(b) below, the water evacuated shall be charged in the following order:

1. Against water stored under contracts for if-and-when available storage space for entities which will use the water outside the District boundaries.

2. Against water stored under contracts for if-and-when available storage space for entities which will use the water within the District boundaries. This evacuation shall be charged pro rata against water stored under all such like contracts at the time of the evacuation.

3. Against any winter storage water in excess of 70,000 acre-feet.

4. Against water stored under contracts with municipal entities within the boundaries of the District, which water is neither Project water nor return flow from Project water and which water is limited to 163,100 acre-feet less any Project water purchased and stored by municipal users. This evacuation will be charged pro rata against the water stored under all such like contracts at the time of evacuation.

5. Against winter storage water not in excess of 70,000 acre-feet.

6. Against Project water accumulated from the Arkansas River and its tributaries.

(b) Notwithstanding the order of evacuation of water listed in Subarticle 13.(a) above, evacuation of water from storage pursuant to existing firm storage contracts, the Highline storage contract and future storage contracts that may be entered into with the Board of Waterworks of Pueblo, Colorado and Twin Lakes Reservoir and Canal Company to satisfy prior commitments will be made pursuant to the terms of such storage contracts. First to spill out of the reservoirs is water stored under contracts for if-and-when available storage space for entities which will use the water outside Southeastern's district boundaries.

Commissioner John W. Keys, III, by his letter of April 3, 2003, announced Reclamation's conclusion that it has authority to enter into long-term contracts with Aurora for utilization of Fry-Ark Project facilities. The transfer of such water rights out of the basin to municipal uses in Aurora has potentially serious impacts to the Arkansas River Basin. Southeastern executed an intergovernmental agreement with Aurora, as did several other parties in the Arkansas River Basin, to mitigate the damages caused by the exportation of water from the Arkansas Valley.

Both the 1962 and 1978 Fry-Ark Authorizing Acts contemplated the construction of the Arkansas Valley Conduit ("AVC"), which has yet to be developed, primarily because the constituents do not have the funding to develop it. The citizens and communities of the Lower Arkansas River Basin have waited 30 to 50 years for this project that will improve their water quality and supply. The need for the AVC has been well established for more than 50 years. The Lower Arkansas River Basin communities continue to seek federal assistance in moving this much-needed project forward.

That is why in my testimony I requested that the Water and Power Subcommittee hold a hearing on H.R. 186 and H.R. 317, the Conduit legislation, as soon as possible.

Response to Representative Napolitano's question regarding how the PSOP long-term excess capacity contracts differ from the Aurora long-term excess capacity contract.

The Preferred Storage Options Plan (PSOP) developed by the Southeastern Colorado Water Conservancy District, its Enterprise and Fry-Ark beneficiaries from 1999-2001 has two components to it: 1) Enlargement and 2) Excess Capacity (storage of water). Your question regarding storage contracts relates to the second component, excess capacity.

Historically, there has been an average of approximately 131,700 acre-feet of excess capacity storage space per water year. Temporary excess capacity contracts enable Contractors to more efficiently use their non-project water, by providing temporary storage for use at a later date. Consequently, temporary excess capacity contracts meet Contractor needs by providing valuable water storage and increased water management flexibility. Capacity in east slope Fry-Ark facilities is only available for storage of non-project water when it is not needed to meet other Project purposes. The number and total volume of temporary excess capacity contract requests made to Reclamation for use of Fry-Ark facilities have increased steadily since 2002. To analyze the direct, indirect and cumulative impacts of temporary excess capacity contracts were evaluated in a 2006 Environmental Assessment for contracts to be issued for the years 2006-2010.

The PSOP evaluated scenarios to better utilize this excess capacity through longterm storage contracts. The scenario chosen in PSOP would allow a municipal water

provider with an existing right to carry-over storage space for an allocation of FryArk water to use that space, subject to a myriad of policy, legal and institutional considerations, to store both Fry-Ark and non-project water in carry-over space.

Currently, only the Board of Water Works of Pueblo has a long-term excess capacity contract. That contract is for 25 years, and was entered into prior to the completion of the PSOP. Colorado Springs is currently in the NEPA-process for a long-term excess capacity contract.

Special protection for the Arkansas Basin beneficiaries of the Fry-Ark Project is built into the repayment contract, Contract No. 5-07-70-W0086, as amended, between the Southeastern Colorado Water Conservancy District and the United States, which govern the evacuation of water from Pueblo Reservoir. The spill order became part of the Contract by the Fourth Amendment in 1984 and resulted from negotiations between Southeastern, BWWP and Colorado Springs in connection with the 1984 applications filed in Water Court for the WWSP and Colorado Springs' and BWWP's exchanges. The spill priorities in Article 13, which are unique among Reclamation projects, provide:

1. Against water stored under contracts for if-and-when available storage space for entities which will use the water outside the District boundaries. 2. Against water stored under contracts for if-and-when available storage space for entities which will use the water within the District boundaries. This evacuation shall be charged pro rata against water stored under all such like contracts at the time of the evacuation.

3. Against any winter storage water in excess of 70,000 acre-feet.

5. Against winter storage water not in excess of 70,000 acre-feet.

6. Against Project water accumulated from the Arkansas River and its tributaries.

Regarding Aurora's proposed contract, Aurora is an out-of-district entity and would be treated as such in all of its contracts with the Bureau of Reclamation regarding Fryingpan-Arkansas Project contracts. Aurora is not currently involved in the District's Preferred Storage Option Plan (PSOP), except to the extent Aurora may have made obligations to individual PSOP participants to pay for costs associated with pursuing approval of the PSOP, such as Otero County.

Response for the record to Rep. Lamborn's question regarding the history of the efforts to reach agreement on the PSOP legislation

After several years of planning, the Storage Study Committee ("SSC"), which included municipal, agricultural, recreational, environmental, and state and federal resource management agencies, developed the PSOP as the best alternative to securing water resources for future demand. To get the plan underway, the PSOP Implementation Committee submitted to the Southeastern Colorado Water Activity Enterprise the PSOP Implementation Committee Report on April 19, 2001, which provides the operational details for the PSOP. Subsequently, in May 2001, Rep. Joel Hefley introduced the first PSOP bill, H.R. 1714, 107th Cong., 1st Sess., which the City of Aurora ("Aurora") opposed.

After the introduction of the first PSOP bill, SECWCD executed stipulations with most of the potential parties to cases involving the enlargement of Pueblo and Turquoise Reservoirs in July 2001.

On October 29, 2001, Aurora and the Board of County Commissioners of Otero County ("Otero County") entered into an Intergovernmental Agreement (“IGA") to resolve issues in dispute between them. In exchange for certain payments made by Aurora to offset the effects of the Rocky Ford transfer cases and an agreement for Aurora to cover certain PSOP costs, Otero County agreed to withdraw opposition to the Rocky Ford cases as well as support PSOP legislation and any amendments thereto that are agreed to by Aurora and SECWCD so long as such revisions do not substantially change the purpose and intent of the PSOP.

By November 2001, roughly twenty communities and water providers in the District executed Memorandums of Agreement with SECWCD to participate in re-operations contract storage and enlargement storage development efforts.

On December 7, 2001, SECWCD and Aurora entered into an IGA (“2001 IGA”), in which the parties agreed to support certain federal legislation. That legislation was ultimately introduced in the 107th Congress as H.R. 3881, discussed below. By the express terms of the 2001 IGA, however, it was to expire in October of the next

year.

Also in December 2001, the City of Pueblo ("Pueblo”) filed an application for a Recreational In-Channel Diversion (“RICD") water right for 100 c.f.s during the winter storage period (November 15 to March 14) and 500 c.f.s during the remainder of the year. That water right was for a kayak course planned by Pueblo and presented possible conflicts with the PSOP. Also before the end of 2001, SECWCD filed an application in the Division 2 Water Court for additional exchange rights on the Arkansas River.

In January 2002, Colorado Springs and the Board of Water Works of Pueblo executed stipulations with SECWCD involving water rights for the reservoir enlargements, and entered into a memorandum of agreement with SECWCD addressing storage of return flows from Fryingpan-Arkansas Project water.

In March 2002, Rep. Hefley introduced his second PSOP bill, H.R. 3881, 107th Cong., 2d Sess. Hefley's new bill was then discussed in a hearing before the House Resources Committee's Subcommittee on Water and Power before the end of the month. In August of the same year, the Colorado Water Conservation Board ("CWCB") issued recommendations to the water court regarding Pueblo's RICD application.

Then in November 2002, voters in Pueblo, Otero, Crowley, Bent and Prowers counties approved an initiative to form the Lower Arkansas Valley Water Conservancy District (“LAVWCD"). The Board of Directors was appointed that December, and in April of the next year, the LAVWCD hired a full-time general manager.

Also in April 2003, John Keys, Commissioner of the Bureau of Reclamation (“Reclamation"), issued a letter announcing Reclamation's conclusion that it has authority to enter into long-term contracts with Aurora for the use of Fryingpan-Arkansas project facilities.

On October 3, 2003, the SECWCD, the Upper Arkansas Water Conservancy District ("Upper Arkansas"), and Aurora entered into a Reuse Memorandum of Understanding ("MOU") to resolve areas of dispute. In this MOU, the parties agreed to settle various issues in water court cases in which they were involved, and Aurora agreed to undertake certain reuse activities and report those activities to SECWCD and Upper Arkansas. Also on October 3, SECWCD and Aurora executed a new IGA, because the original 2001 IGA had expired and the SECWCD Board voted not to approve an extension. This new IGA principally concerned Aurora's water diversions and storage contracts and stipulated that both parties will request Members of Congress to support federal PSOP legislation.

In November 2003, Upper Arkansas and Aurora entered into their own IGA to resolve issues pending in water court cases and to further cooperation between them, in particular, to participate in and contribute to storage in a replacement pool. Also in November 2003, SECWCD and Upper Arkansas entered into a storage MOU providing certain benefits received by SECWCD in the SECWCD-Aurora IGA to Upper Arkansas.

In February 2004, Pueblo, the City of Colorado Springs ("Colorado Springs"), and the Board of Water Works of Pueblo executed an IGA that created a Flow Management Program related to the Pueblo's original plans for a kayak park and recreational flows. However, in May 2004, Aurora, SECWCD, and the City of Fountain joined Pueblo, Colorado Springs, and the Board of Water Works of Pueblo and all six parties entered into an IGA concerning the Flow Management Program and the development of Regional Water Management Program. Following these agreements, in June 2004, Rep. Hefley introduced H.R. 4691, 108th Cong., 2d Sess.

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